State v. Blackstock

• Decision Date: 13 August 1985
• Docket Number: No. 638A84,638A84
• Citation: 333 S.E.2d 245,314 N.C. 232
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roger BLACKSTOCK.

Page 245

333 S.E.2d 245

314 N.C. 232

STATE of North Carolina v. Roger BLACKSTOCK.

No. 638A84.

Supreme Court of North Carolina.

Aug. 13, 1985.

Lacy H. Thornburg, Atty. Gen. by Walter M. Smith, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

By his first assignment of error defendant contends that the trial judge committed prejudicial error in questioning the prosecuting witness by intimating an opinion as to the controverted fact of the assailant's identity. Ms. Simmons, the prosecuting witness, was testifying concerning a photograph showing injuries to her neck and face when the following exchange occurred:

THE COURT: Were those marks on your neck prior to the Defendant placing his hand around your throat?

THE WITNESS: No, they were not.

It is well established by our case law and statutory enactments that it is improper for a trial judge to express in the presence of the jury his opinion upon any issue to be decided by the jury or to indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury. See N.C.Gen.Stat. § 15A-1222 (1983); State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983). Even so, every such impropriety by the trial judge does not result in prejudicial error. Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. State v. Brady, 299 N.C. 547, 264 S.E.2d 66 (1980); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results. State v. Yellorday, 297 N.C. 574, 256 S.E.2d 205 (1979). In this connection it is well settled that it is the duty of the trial judge to supervise and control the course of a trial so as to insure justice to all parties. In so doing the court may question a witness in order to clarify confusing or contradictory testimony. State v. Greene, 285 N.C. 482, 206 S.E.2d 229.

Defendant relies on State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936), to support his position. In Oakley a couple testified that shortly after a man had broken into their home, they spotted and pointed out to law enforcement officers tracks in fresh snow leading away from their home. Thereafter when an officer was describing the tracks he found, the trial judge told him he could not testify, at that point, as to who made the tracks. Shortly afterwards, in the course of the same witness's testimony the judge asked, "You tracked the defendant to whose house?" 210 N.C. at 208, 186 S.E. at 246. On appeal this Court found that question to be prejudicial error, noting that the question amounted to an opinion by the trial judge that the State had proven the tracks to be those of the defendant, when in fact, this had not been proven by the State. In making this decision the Court also noted the circumstantial nature of the State's evidence.

On the other hand the State points to State v. Cureton, 215 N.C. 778, 3 S.E.2d 343 (1939), overruled on other grounds, State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), and to State v. McEachern, 283 N.C. 57, 194 S.E.2d 787 (1973), as governing this assignment of error.

In Cureton a witness had testified that the defendant shot the victim four times and then testified that the defendant had shot deceased a fifth time. At that point the trial judge asked the witness when the defendant shot the deceased the last time. This Court rejected the defendant's contention that the judge's question amounted to an expression of opinion that the defendant did the shooting, noting that the witness had already testified that the defendant did the shooting and that the judge's question was merely for clarification.

In McEachern defendant was charged with rape. Before there was any testimony from the victim that she had been raped the trial judge asked the prosecuting witness, "Let me ask you a question of clarification before you go further, you were in the car when you were raped?" Id. at 59, 194 S.E.2d 789. Finding prejudicial error, the Court reasoned that the trial judge assumed that a rape had occurred before it was established by any evidence before the jury. In reaching its conclusion the Court distinguished Oakley and Cureton in the following manner:

These two cases are distinguishable. In Oakley the court's question expressed an opinion that the tracks were made by defendant. This crucial proof had not been shown by other evidence. In Cureton the fact that defendant had shot the deceased was supported by ample evidence, and the judge's question only sought clarification as to when and where the shooting took place. The defendant did not deny that he shot the deceased and in fact later testified that he fired the fatal shots, but that he did so in self defense.

283 N.C. at 61, 194 S.E.2d at 790.

In the instant case Ms. Simmons had testified at length as to defendant's identity, stating that she had previously known him and relating that she was in his presence for a long period of time under conditions which permitted her to see defendant clearly. She picked defendant's picture out of a photographic lineup shortly after the crime occurred, and had clearly testified that it was defendant who placed his hands around her neck and choked her.

We do not believe that a juror could reasonably infer that the judge's question amounted to an expression of an opinion as to defendant's guilt or innocence or as to any issue to be decided by the jury or as to the weight of the evidence or the credibility of the witness. Obviously the trial judge sought clarification as to whether the marks shown in the photograph were there before the alleged assault on the victim. Therefore, under the rationale of Cureton and McEachern, we hold that the trial judge did not commit prejudicial error by questioning the prosecuting witness about the marks on her neck.

Defendant assigns as error the failure of the trial judge to dismiss the charges of first degree rape and first degree sexual offense. It is his position that there was no evidence before the jury to show that a serious personal injury was inflicted upon the victim during the course of the respective crimes.

The pertinent portions of the rape statute and the sexual offense statute are as follows § 14-27.2. First-degree rape.

(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:

....

(2) With another person by force and against the will of the other person, and:

....

b. Inflicts serious personal injury upon the victim or another person....

§ 14-27.4. First-degree sexual offense.

(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:

....

(2) With another person by force and against the will of the other person, and:

....

b. Inflicts serious personal injury upon the victim or another person....

The trial judge in the mandate of his instructions to the jury on the charge of first degree rape stated:

So, I charge that if you find from the evidence beyond a reasonable doubt that on or about December the 12th, 1983, that Roger Blackstock engaged in vaginal intercourse with Cynthia Simmons and that he did so by grabbing her, telling her that he had a gun, and by threatening to harm her, and that this was sufficient to overcome any resistance which Cynthia Simmons might make, and that Cynthia Simmons did not consent and that it was against her will, and that the Defendant inflicted a laceration upon Cynthia Simmons' head, and that this was a serious personal injury, it would be your duty to return a verdict of guilty of first degree rape. However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first degree rape.

He also submitted the charge of second degree rape in the same manner except there was no requirement that the State prove beyond a reasonable doubt that defendant inflicted serious personal injuries upon Ms. Simmons.

The trial court also correctly submitted the charges of first degree sexual offense and second degree sexual offense, noting that first degree sexual offense and second degree sexual offense differed only in that the State did not have to prove the infliction of serious personal injury on Ms. Simmons in order to convict on the charge of second degree sexual offense.

Defendant argues that the serious injury relied upon by the State occurred a substantial time after both criminal offenses had terminated and therefore could not be relied upon as an element of first degree rape or first degree sexual offense. This argument presents a question of first impression concerning the statutory construction of our rape and sexual offense statutes, N.C.G.S. § 14-27.2 and N.C.G.S. § 14-27.4.

The cardinal principle of statutory construction is that the intent of the legislature is controlling. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). Further, in construing a statute with reference to an amendment it is presumed that the legislature intended either to change the substance of the original act or to clarify the meaning of the statute. Childers v. Parker's, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968). "Where a statute has been repealed and substantially re-enacted by a statute which contains additions to or changes in the original statute ... the additions or changes are treated as amendments effective from the time the new statute goes into effect." 73 Am.Jur.2d Statutes § 391 (1974).

In seeking...